Memorandum by UNICE
1. NEED FOR
ACTION AT
UNION LEVEL
UNICE is resolutely in favour of developing
and sustaining a competitive commercial environment in the EU.
Competition provides the best incentive for business efficiency,
encourages innovation and guarantees consumers the best choice.
Community competition law is thus crucial and it is of the utmost
importance for business that the application of these rules is
of good quality, fair, transparent, effective and efficient. Considering
that the Commission acts in fact as both investigator and decision-maker
in Community competition proceedings, it is important that there
are effective external and internal controls.
Effective controls would contribute to a more
real separation of investigating and decision-making responsibilities
and an impartial re-examination of the legal and economic arguments
to a case. The current system of judicial review is unsatisfactory
because the length of proceedings discourages and frustrates litigation
and causes legal uncertainty for companies.
Companies are hindered by uncertainty regarding
the validity of their business strategies, whether related to
a planned merger, to cooperation, or to the distribution or marketing
of their products. More and more appeals against Commission decisions
(both against antitrust cases and decisions to allow or prohibit
a merger) and long delays before the Court of First Instance (CFI)
takes a decision (eg companies engaged in a merger may have to
wait a year or more for an appeal to be heard and decided) harm
the effectiveness of companies to respond rapidly to competitive
pressures. This in turn harms the effectiveness of competition
and EU competitiveness overall.
There is thus a clear need to improve the system
and the best solution in UNICE's view would be, similar to the
CBI's suggestion, the creation of a new Competition Court to operate
as a judicial panel of the Court of First Instance as provided
for by Article 225a EC.
2. REFORM OF
THE CFI
The CFI has introduced measures to reduce delays
for cases under its jurisdiction ("expedited procedure")
but the resulting reduction of delays is not sufficient considering
that, for example, merger cases should be decided within six months.
Although not required by its rules of procedure, the use of French
as the working language of the CFI is an important reason for
delays which could be resolved by opting for English in some instances,
but, as the CBI has pointed out, a special Competition Court would
have advantages which would not be achieved by reforming the rules
and procedures of the CFI. The rules of procedure of the Competition
Court could be specifically designed to achieve a speedy resolution
of cases and allow for mechanisms to prioritise cases. Moreover,
any increase in the rest of the CFI's caseload would not impact
on the cases handled by the Competition Court and its judges would
be free to spend all their time on competition cases.
However, since it is likely to take some time
to set up a Competition Court, UNICE considers that a sensible
interim solution would be to establish a specialist chamber within
the CFI for competition cases.
Such a chamber could reduce the duration of
cases as judges would develop a level of expertise which would
enable them to handle competition cases more quickly.
3. JURISDICTION
OF THE
COMPETITION COURT
As stated above, UNICE shares the CBI's support
for the creation of a new Competition Court to operate as a judicial
panel of the CFI under Article 225a EC. In UNICE's view it could
have jurisdiction to hear both antitrust and merger cases.
A Competition Court should also have the power
to deal with procedural matters related to due process issues
in Community competition proceedings.
The standard of judicial review should be the
same as that currently conducted by the CFI.
4. COMPOSITION
OF THE
COMPETITION COURT
The judges to the Competition Court should in
principle be selected and appointed in the same way as judges
for other Community judicial panels. They should be independent
and have the ability to be experts in competition law.
In addition, UNICE supports the ad hoc
secondment of national competition judges to the Competition Court.
5. APPEALS FROM
THE COMPETITION
COURT
Decisions given by a judicial panel should be
subject to appeal before the CFI on points of law only, as is
currently the case with appeals from the CFI to the Court of Justice.
Subsequent appeals from the CFI to the Court of Justice should
only be made exceptionally when there is a serious risk of the
unity or consistency of Community law being affected as provided
by Article 225 (2) EC.
6. FUTURE ROLE
OF THE
CFI
The CFI, in addition to hearing other cases
under its jurisdiction in first instance, would be the appeal
court from the Competition Court. Considering its expertise in
competition matters, the new Competition Court could be given
the power to deal with preliminary questions on competition law
from national courts (which are likely to increase in number following
Regulation 1/2003), provided that these questions are limited
to competition law issues.
13 November 2006
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